All About Design Contracts: From 99designs.com to Lawyers to Writing one out Yourself

I’ve never actually worked or freelanced under a true contract. The only clients I’ve worked with have been my church – on a volunteer basis – and a few individuals. Most of the individuals didn’t request a contract, and because I was quite new to freelancing at the time, I didn’t think to create one. Also, the website I won most of my work through then (99designs.com) had their own kind of informal “contracts.”

The Good, the Bad, and the Ugly about 99designs.com and others like it

I began my work on 99designs.com – which I’ve since learned to dislike because its “contracts” are basically like working “on spec” in the hopes (not guarantee) of getting paid. Still, 99designs.com and others like it are good for a few things, including supplying designers and clients with an informal “contract” that includes the work to be done, fees to be paid, delivery dates (usually within a week), and some of the responsibilities of each party (all these things are included in the design brief which is shown at the outset of the work). Also, after the client decides on one design they like and want to purchase (out of potentially hundreds of choices), 99designs.com provides a “Transfer of Copyright” for designers to fill out in order to hand over their design and copyrights to the client.

This system provided by 99designs.com is both positive and negative. On the positive side of things, this means that a designer doesn’t have to go through all the work required to create a contract – including the work, fees, dates, responsibilities, ownership, and other clauses – and get both parties to sign it. Granted, once a template contract is developed, it can be modified for each client. However, that is still a bit of work. The 99designs.com website eliminates this necessary step in the design and development process.

On the negative side of things, the 99designs.com system means that the designer is at the whims of the company’s “spec contract” in which the company only chooses one design to agree to purchase. All other designers who have already done the work required by the “spec contract” receive no benefits, except perhaps telling themselves to “tack it up to good experience.” In this way, the “spec contract” completely satisfies the needs of the client – cheap design, short time-frame, multiple choices, and safety in canceling the contract – while completely ignoring the needs of the designer – fair work for fair pay, penalties for canceling the contract (before or after work is finished), and legal obligations of both parties.

Who should hold the “power” in a design contract?

But, who should be granted the “power” in deciding on a contract? Sites like 99designs.com put the power almost totally in the client’s hands. But if freelance designers tried to enforce their own wills in their contracts and retain all the power for themselves, chances are they wouldn’t get hired often. Therefore, the goal should be a “win-win negotiation,” as authors Crawford and Bruck write. They say, “contracts require negotiation” and while “the designer can’t negotiate for the other side, [a] wise negotiation strategy must allow the other side to meet their vital needs within the larger context which also allows the designer to obtain what he or she must have.” (Crawford, 2003, p 3).

Do you need a lawyer?

Eric Miller, on About.com writes, “Graphic design contracts are important to protect the designer and clearly spell out the terms of an agreement and project.” (Miller, n.d.) There is a wealth of heavily researched legal documents available on the web and in print, like Business and Legal Forms for Graphic Designers, that can be used as preliminary legal counsel in the development of a contract. But, as Miller also writes, these may not be exhaustive and “parts of a contract may vary from project to project, so always consult a lawyer when completing a new agreement to use in your design business.” (Miller, n.d.) Also, it is also important to remember that laws vary from state to state and country to country, so in order to be fully covered under the law where you reside, consulting a lawyer, at least before developing your first contract template, is a good idea. Still, modifying contract templates from reliable sources like AIGA, or the GAG (Graphic Artists Guild), can be a good way to ensure a strong start (and some projects may be too small to warrant legal advice or even a contract).

Use a contract to be sure we all understand each other

Recently, I’ve been dealing with another potential client who really wants my work, but doesn’t know exactly what he wants, and isn’t willing to pay a lot. In this case, a contract that is written by me to include a breakdown of deliverables, fees, and delivery dates, would help us both better understand the scope of the work within his budget. In order to help this client fully understand the contract agreement, it would help for me to leave out a lot of the very technical legal mumbo-jumbo. By writing a contract in simplified layman’s terms, while still being sure to cover all the bases, it can help a client better connect with, understand, and agree to a design contract. Additionally, it would be a good idea for the designer presenting a contract to not gloss over any parts of the contract, but let the client read fully the entire document before agreeing to sign (or negotiate). This will also encourage the designer to keep words and sentences simple and understandable within the contract.

Sample Contracts in Plain English

Want to check out some great examples of contracts in plain English?

Check out Andy Clarke’s Contract Killer and Contract Killer: The Next Hit.

And if you’re looking for much more formal fare, check out the excellent Business and Legal Forms for Graphic Designers book by Tad Crawford and Eva Doman Bruck.

What about you?

What are your experiences with design contracts? Any advice? Do you like them or don’t you? What’s the best way to make sure everyone is on the same page about contracts?

References

Bruck & Crawford. (2003). Business and legal forms, (3rd edition). New York: Allworth Press.

Miller, Eric. (n.d.). What to Include in a Graphic Design Contract. Retrieved June 23, 2010 from http://graphicdesign.about.com/od/contracts/a/contract.htm